A WARNing: State Mini-WARNs Apply to

Plant Closing and Mass Layoffs

© 2011 Littler Mendelson, P.C.

Federal WARN:

“Mass Layoff” – 500 other than part-time employees OR

– 50 or more other than part-time employees AND over 33%

“Plant Closing” – 50 or more other than part-time employees at a

single site, or within an operating unit at a single site.

Federal WARN:

Who do you count, and when do you count them?

Measurement Date (Notice Date – 60 days before first layoff)

NOT employees who work FEWER than 20 hours per week

NOT employees who worked fewer than 6 months out of last 12.

Basic Federal WARN Date Calculations

Notice Notice

Date Date D-Day D-Day D-Day D-Day D-Day D-Day

-12 Mos. -6 Mos. -89 Days -60 Days -29 Days +29 Days +89 Days

28-May-12 27-Jul-12

28-May-11 28-Nov-11 29-Apr-12 28-Jun-12 25-Aug-12 24-Oct-12

© 2011 Littler Mendelson, P.C. Created by Gerald T. Hathaway, New York

28-May-12 Stable Workforce 160 At single Site

27-Jul-12 Layoff of 10 Less than 50

24-Aug-12 Layoff of 15 More Still less than 50

19-Oct-12 Layoff 25 More 50, but at 31.25%

24-Oct-12 Reduce Hours of 3 Nothing, (YET!)

24-Apr-13 Hours Still Reduced Total 53, and at 33.13%!

WARN DAMAGES for EVERYONE

STATE MINI-WARN: State Laws That Create WARN-Like Obligations

California (applies to facilities that have employed 75 or more “persons” within a year, and counts layoffs differently than federal WARN), Cal. Lab. Code §§1400 – 1408.

Hawaii (applies to as few as 50 employees; may be limited to layoffs caused by sales of businesses or relocations of operations to out of state), Haw. Rev. Stat. §394B-1 – 394B-13; Haw. Code R. §12-506.

Illinois (applies to layoffs of as few as 25 employees), 820 Ill. Comp. Stat. 65/1-99.

Iowa (can apply to as few as 25 employees and may require 30 days notice; statutory non-compliance penalty), Iowa Code §§ 84C.1-84C.5.

Maine (requires severance pay), 26 Me. Rev. Stat. Ann. §625-B.

New Hampshire (can apply to layoffs of as few as 25 employees), N.H. Rev. Stat. Ann. 282-A:45-a.

STATE MINI-WARN: State Laws That Create WARN-Like Obligations

New Jersey (severance pay may be required if notice not given, far less flexibility to address changing conditions), N.J. Stat. Ann. § 34:21-1 – 7.

New York (effective February 1, 2009, applies to layoffs of as few as 25 employees, and requires 90 days’ notice), N.Y. Lab. Law §§ 860 et seq.

Tennessee (applies to employers of between 50 and 99 employees), Tenn. Code Ann. §§ 50-1-601, 50-1-602, 50-1-603.

STATE MINI-WARN: State Laws That Create WARN-Like Obligations

Wisconsin (applies to layoffs of as few as 25 employees), Wis. Stat. §109.07, 109.075.

Virgin Islands (requires 90 days notice and can apply to as few as 10 employees), 24 V.I. Code Ann. §471 - 478 et seq.

STATE MINI-WARN: State Laws That Create WARN-Like Obligations

State Laws That Reference WARN and Create Additional Notice Obligations

Minnesota (an employer providing a notice under WARN must report to the Workforce Development commissioner the names, addresses, and occupations of the employees who will be or have been terminated), Minn. Stat. § 116L.976.

Oregon (notice of a plant closing or mass layoff must be made to the Department of Community Colleges and Workforce Development), Ore. Rev. Stat. § 285A.510- 516.

State Laws That Urge Voluntary Compliance with WARN-like Obligations

Maryland (adopting voluntary guidelines for employers faced with a reduction in operations; urges at least 90 days notice to employees), Md. Code Ann. Lab. & Empl. §§ 11-301 – 11-304 .

Michigan (urging employers to voluntarily notify employees, the community and any employee organization representing the employees of a closing or relocation as soon as possible), Mich. Comp. Laws Ann. §§ 450.731 – 450.736.

State Laws That Are By Their Nature Peculiar

Kansas (a permit is required for cessation of operations. But, the state has no procedure for obtaining such a permit, and no permit form exists), Kan. Stat. Ann. §44-616 (2008).

Massachusetts (the state law is not funded or enforced), Mass. Gen. Laws ch. 151A, §§ 71A –71G.

State Laws That Have Specific Requirement Regarding Larger Layoffs, but Are Not WARN-Like

Alabama (requires a phone call to nearest unemployment claims office if 25 or more are being laid off at around the same time for at least 7 days (a “mass separation”)), Ala. Code § 25-4-8(a) (2008); Ala. Admin. Code R. 480-4-1-.06 (1)(ah), r. 480-4-3-.10.

Connecticut (for certain closings, the employer must pay for 100% of health care coverage for employees and dependents, to the extent that they are covered, for up to 120 days), Conn. Gen. Stat. §§ 31-51(n), 31-51(o), 31-51(s).

State Laws That Have Specific Requirement Regarding Larger Layoffs, but Are Not WARN-Like

Georgia (fax Georgia DOL Forms 402 and 402A to 404-656-2304 within 48 hours following any layoff of 25 or more employees on the same day for the same reason expected to last more than 7 days), Ga. Comp. R. & Regs. R. 300-2-4.10.

Massachusetts (special notice must be given if an employer with at least 12 employees relocates operations), Mass. Gen. Laws ch. 149, § 179B.

State Laws That Have Specific Requirement Regarding Larger Layoffs, But Are Not WARN-Like

New Hampshire (special notice must be given to state unemployment agency within three days of the end of week in which 25 employees are being laid off for expected 7 days or more for either vacation or holiday shutdown or company closure), N.H. Rev. Stat. Ann. § 282-A:45-a; N.H. Code Admin. R. EMP 302.13.

North Carolina (special notice must be given state unemployment agency before laying off 20 employees, and there is a special form for employers with 100 or more employees), N.C. ESC Regs. §§ 9.10, 9.11.

State Laws That Have Specific Requirement Regarding Larger Layoffs, But Are Not WARN-Like

Ohio (an employer should call the state’s unemployment insurance agency (866-733-0025) 3 days before laying off or separating 50 or more employees within a 7 day period), Ohio Rev. Code Ann. § 4141.28(C).

© 2011 Littler Mendelson, P.C.